Some company wellness programs risk violating genetic discrimination law

Employers use wellness programs to encourage their employees to lead healthier lives, but some programs could be in violation of a federal law that aims to prevent discrimination through the use of genetic information.

The Genetic Information Non-Discrimination Act, known by the acronym GINA, prohibits covered employers and health plan sponsors from asking employees to provide genetic information in exchange for incentives.

When companies administer health risk assessments — used to determine what risk factors people have for health problems, such as diabetes or heart conditions — they may unknowingly violate the law if they ask questions about a person’s family history of disease.

The Equal Employment Opportunity Commission has started targeting employers that incorporate incentive-driven wellness programs through which genetic information might be used as part of a health risk assessment in exchange for discounts on health insurance premiums, gift cards or other incentives, such as time off.

As a result, employee benefits managers and attorneys are encouraging companies to re-evaluate how their health risk assessments are administered to ensure they are in compliance with the federal law.

It’s best, attorneys say, to not ask for any information that could be considered genetic when administering employee health risk assessments.

“There’s just this prohibition under the law,” says Jason Lacey, a partner at Foulston Siefkin LLP. “The safe thing to do is just not ask for it.”

Under GINA, family medical history is genetic information. That means, for example, that employers can’t ask employees if they have a family history of heart disease.

Steven P. Smith, an employee benefits attorney with Hinkle Law Firm LLC, says businesses that violate the law could be subject to a $100 fine per employee.

Smith says GINA is one of several privacy and nondiscrimination regulations employers need to ensure they comply with when implementing wellness programs that include health risk assessments.

Smith says it’s good practice for businesses to get advice, from an attorney or consultant, before implementing health and wellness programs that could be subject to GINA.

“An ounce of prevention is worth of pound of cure,” Smith says. “This stuff is complicated enough that’s it’s dangerous to rely on information off the top of your head.”

Emphasizing overall health

GINA prohibits health insurers or health plan administrators from requesting, requiring or using genetic information to determine coverage, rates or pre-existing conditions. That information also can’t be used in employment decisions.

Ron Whiting, executive director of the Wichita Business Coalition on Health Care, says the goal of the law is to be fair and consistent and provide equal opportunities for employees to benefit from wellness programs.

He says that, while genetic precursors can’t be used to determine health benefits in the work place, the information is still helpful in a physician-patient relationship to help determine a person’s risk factors for disease.

Genetic information defined
The Genetic Information Non-Discrimination Act, or GINA, defines genetic information as information collected through:
• An individual’s genetic tests.
• Genetic tests of an individual’s family members.
• Genetic tests of a fetus or any individual or family member utilizing assisted reproductive technology.
• Family history.
• Participation in clinical research.
SOURCE: U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES.